Justices Sohlberg and Hayut issue rare comments on judicial reform

Supreme Court President Esther Hayut and Justice Noam Sohlberg issued rare public comments on aspects of the judicial reform on Monday, respectively addressing issues with the Judicial Selection Committee and the reasonableness standard.

Sohlberg, whose statements have been cited by Constitution, Law, and Justice Committee Chairman Simcha Rothman as a basis for the advancing reasonableness bill, said legislation was not the correct way to address issues with the common law doctrine.

“I did not think then, three and a half years ago, in that lecture, on amendment through legislation,” said Sohlberg through the official judiciary spokesperson. “I was thinking about a trend that would come through [judge] rulings. At the end of the lecture, I indicated that reasonableness, interpretation, and proportionality invite significant challenges that oblige us to deepen the important discussion on appropriate limits of judicial discretion.”

Sohlberg later clarified that he made the statement in response to questions about his remarks years ago, and it was not a position on the current legislative process.

The Likud said that contrary to initial media publications, Sohlberg did not contradict the principles behind the proposed bill, being limitations on the application of the reasonableness standard for elected officials.

“Sohlberg once again made it clear that he adheres to the existing principles regarding the amendment of the reasonableness standard,” said the Likud. “Since Justice Sohlberg gave his remarks, three and a half years have passed, nothing has changed and the judges did not heed his call and the ruling was not changed. Therefore, the coalition will advance the amendment of the reasonable cause through legislation, according to Sohlberg’s outline.”

Labor MK Gilad Kariv said Sohlberg’s disavowal of legislation on reasonableness showed that coalition politicians had promoted the bill using the justice’s name in vain.

“This is the proposal of the alliance of the corrupt who are interested in gaining control over all the government and preparing the way for the removal of the legal adviser to the government,” said Kariv.

Rothman wrote on Facebook that Sohlberg echoed what the coalition had been saying since the reasonableness bill had been initiated, that if reasonableness had not been applied so often by the court then there would be no need for legislation.

What is the reasonableness bill?

As part of common law, the reasonableness standard was created through rulings and written opinions in the court, rather than legislation. The reasonableness bill would limit the use of the ability of the courts to strike down government administrative decisions deemed extremely beyond the scope of what a reasonable and responsible authority would decide. The courts would not be able to engage in judicial review of decisions by the government, ministers, and prime minister.

Earlier on Monday, Hayut criticized the decision of the government not to convene the Judicial Selection Committee to begin appointing judges. Justice Minister Yariv Levin has indicated that the government would not convene the panel until it had been reformed, a central proposal of the judicial reform.

“The president of the Supreme Court, Justice Esther Hayut, takes very seriously the fact that the Judicial Selection Committee has not yet convened, given the significant shortage of judges and the resulting damage to the service provided to the public due to the large load of cases in the system,” said the judiciary spokesperson.

A spokesperson for Levin said he would not comment on Hayut’s statement.

In a joint meeting between Hayut and the Judiciary Public Complaints commissioner, whose tenure ends in November, it was warned that according to existing law his term could not be extended, and without the Judicial Selection Committee, a replacement could not be appointed.

The judiciary spokesperson said a legislative amendment was considered to allow a short extension. On Monday, KAN reported that Levin and Hayut had discussed and agreed on such legislation.

It is rare for High Court justices to comment about policies and proceedings that are not before their bench.